84 LUMBER COMPANY, L.P. v. GREGORY MORTIMER BUILDERS et al
MEMORANDUM OPINION ON THE 275 Plaintiff's Motion in Limine to Preclude Testimony of William Weissgerber filed by 84 LUMBER COMPANY, L.P. Signed by Magistrate Judge Lisa Pupo Lenihan on 11/14/2017. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
84 LUMBER COMPANY, L.P.
GREGORY MORTIMER BUILDERS,
Civil Action No. 11-548
Magistrate Judge Lisa Pupo
ECF No. 275
MEMORANDUM OPINION ON PLAINTIFF’S MOTION IN LIMINE
TO PRECLUDE TESTIMONY OF WILLIAM WEISSGERBER
Currently pending before the Court is the Motion in Limine to Preclude
Testimony of William Weissgerber (the “Weissgerber MIL”), ECF No. 275. For the
reasons set forth below, the Court will grant the Motion in part to exclude all testimony
except as narrowly defined in the denial. The Court will deny the Motion solely to allow
testimony by William Weissgerber (“Weissgerber”) as to the market value on the
contemplated performance date of units which are the subject of the Defendants’ five (5)
Subcontract Agreement counterclaims (Counts IV-VIII).
RELEVANT FACTUAL AND PROCEDURAL HISTORY
In lieu of a recitation of the facts, the Court directs the parties to its November 8, 2017
Memorandum Opinion on Plaintiff’s Motion in Limine to Preclude Testimony and Evidence of
Defendants’ Direct and Incidental Damages (the “Memo Opinion on Damages”), ECF No. 301.
The Court again directs the parties to the Memo Opinion on Damages and the prior
Opinions quoted and cited therein. The Court has unambiguously held, on the basis of the
contractual damage limitations of Subcontract Paragraph 15, that alleged damages based on, e,g,
“carrying costs”, or market changes in valuation subsequent to the contemplated performance
date are precluded. See, e.g., ECF No. 301 at 7, n. 6 (quoting ECF No. 214 at 20 (“In other
words, 84 Lumber would not be a guarantor of the loss beyond the direct cost of meeting the
warranted standard, and other losses incurred by delay or failure of contract performance
remained with Defendants . . . .”) (emphasis added)). It has also unambiguously held that
Defendant is entitled to “recover the value of the thing promised, [which] is equivalent to a claim
[for] the value of repair or replacement under the warrant”. Id. (quoting ECF No. 214 at 24).
The specific alternative, equivalent, valuation is “the difference in fair market value on the
contemplated date between the performance as warranted and delivered.” Defendants’
Opposition to [the Weissgerber MIL]”, ECF No. 281 at 2 (quoting ECF No. 245); see also ECF
No. 301 at 7-8.
Testimony as to whether the subject units “could have [been] sold”, see, e.g., ECF No.
281, is irrelevant as it is a matter of “common sense” that the units could have been sold had
Defendants so elected, the relevant questions (to the alternative valuation) being solely the price
at which a sale could have been effected and the difference between that price on the
contemplated performance date attributable to a difference in the “as warranted” and “as
delivered” condition of the units. Cf. ECF No. 281 at 2-3.
Plaintiff asserts “the Court’s intent not to entertain valuation testimony from any party
was rendered manifest when it dismissed Defendants’ motions seeking exclusion of 84 Lumber’s
corresponding experts ‘as moot’.” Plaintiff’s Memorandum in Support of [the Weissgerber
Motion]”, ECF N0. 276 at 4 (citing ECF No. 250-251). To the contrary, by its February 23,
2017 Order, ECF No. 250, the Court dismissed Defendants’ Motion in Limine as to Alan W.
Kaplan (“Kaplan”) as moot because his testimony was “no longer relevant”. Kaplan’s Report
pertained to analysis of the market conditions from the early 2000’s to 2012 and did not include
property valuation. See ECF No. 187, Ex. 1. By its February 23, 2017 Order, ECF No. 251, the
Court also dismissed Defendants’ Motion in Limine as to Steven Gottlieb (“Gottlieb”) as moot
because his testimony was “no longer relevant”. Gottlieb’s Report, see ECF No. 188, Ex. 1,
critiqued/countered the Report of Defendants’ expert, John McPherson, which Report was also
deemed no longer relevant by Order, ECF No. 252; Gottlieb’s Report contained no property
valuation. The McPherson Report was directed to Defendants’ bank loans/financing (which may
have been relevant had Defendants prevailed on a tort theory of liability; i.e., one outside their
contractual damage limitations) and referenced expressly use-restricted appraisals in that context.
Although Plaintiff requests that should Weissgerber be permitted to testify, its “market
analysis experts . . . previously stricken”, i.e., Kaplan and Gottlieb, “be permitted to testify’ in
rebuttal. Plaintiff’s Reply Brief in Support, ECF No. 287 at 1. The Weissgerber Report, unlike
that of Kaplan or Gottlieb, appears to include an opinion on the “as warranted” valuation of the
counterclaim units. See ECF No. 224, Ex. F.1 The Court finds no material in either the Kaplan
or Gottlieb Report similarly potentially relevant to the alternative valuation. Cf. ECF No. 287 at
2 (Plaintiff’s statement of “the subject matter about which [Kaplan and Gottlieb] were going to
opine [as] market conditions in the . . . region”). However, should Plaintiff elect to file, on or
before November 21, 2017, a Supplemental Brief providing precise identification of relevant
property valuation in either Report, the Court will consider it.
For the reasons set forth above, the Court will grant in part and deny in part Plaintiff’s
Motion in Limine, ECF No. 275, as set forth in the Summation above. An appropriate Order will
Lisa Pupo Lenihan
United States Magistrate Judge
Counsel of record
Dated: November 14, 2017
The Court repeats its observation that as the contemplated performance date was not specified
by contract, it will be determined by the parties’ Stipulation or by the Court.
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